Advisory Opinion No. 2000-24

Re: Peter Simone

QUESTION PRESENTED

The petitioner, a North Providence Town Councilor, a municipal elected position, requests an advisory opinion as to whether he may participate in matters concerning the Fraternal Order of Police Associates (FOPA) or purchase of a thermal imaging camera for the Fire Department given that he is a member of the FOPA.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a North Providence Town Councilor, a municipal elected position, may participate in matters relating to the purchase of a thermal imaging camera for the Fire Department and the Fraternal Order of Police Associates (FOPA) generally, even though he is a member of the FOPA and the FOPA is raising funds for the purchase of the same equipment.

The petitioner represents that the FOPA, Rotary and Lions are sponsoring a drive to raise money for the North Providence and Johnston Fire Departments to purchase thermal imaging cameras. The petitioner indicates that he is a member of the FOPA, but will not individually be soliciting during the fundraising event. Additionally, the petitioner represents that the Town Council may be called upon to budget funds for the Fire Department for the purchase of the thermal imaging camera.

Under the Code of Ethics, the petitioner, as a Town Councilor, may not participate in a matter in which he, a family member, or a business associate has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his public duties. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occur if the official has reason to believe or expect that he, a member of his family, or any business associate will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. R.I. Gen. Laws §§ 36-14-5(a), 7(a). Under R.I. Gen. Laws § 36-14-2(3), a “business associate” is defined as any individual or entity joined with a public official “to achieve a common financial objective”. Commission Regulation 5011, Transactions with Subordinates, provides that the petitioner may not engage in a financial transaction with his subordinates unless it is initiated by the subordinate, part of a regular commercial business or occupation, or a charitable or fundraising event under the general sponsorship of a municipality. The purpose of Regulation 5011 was to restrict the use of a public office to leverage solicitations for contributions, political or private, from subordinates.

The Commission has previously concluded that public officials who merely are members of an organization are not business associates of the organization for purposes of the Code of Ethics. See e.g., A.O. 96-44(advising Planning Board member who is a member of the YWCA that so long as he is not in a position affect the financial objectives of the YMCA through voting or other means, such membership is not enough to rise to the level of a "business associate" under the Code of Ethics). Therefore, the petitioner does not have a business associate relationship with the FOPA that would preclude his participation as a Town Councilor on matters affecting the FOPA.

Additionally, the petitioner advises that he will not personally participate in any fundraising. The Commission previously has concluded that a public official must exercise care when pursuing such activity, including not soliciting subordinates or anyone over who he or she must exercise supervision and control. See e.g. A.O. 99-139 (concluding that a Board of Pharmacy member may not participate in soliciting donations from individuals/entities since the Board exercises supervisory responsibility and/or control over some of the targets of the Association’s fund raising efforts); A.O. 99-44 (finding that individual members of RIHMFC may not solicit contributions from entities that do business with the agency except in situations where the Board members or staff who solicit contributions do not exercise supervisory responsibility or control over the entity(ies) being solicited, and where they are not acting on behalf of someone who exercises such responsibility). Since the petitioner represents that he will not participate in such solicitation, this should not be an issue here.

Therefore, nothing in the Code of Ethics would prohibit the petitioner from participating in the discussion or vote concerning allocating funding to the Fire Department for a thermal imaging camera even though an organization to which he belongs solely as a member solicits funds for the purchase of the same equipment. If the circumstances change such that the petitioner does take part in the solicitations, he should return to the Ethics Commission for additional guidance.

Code Citations:

36-14-5(a)
36-14-7(a)
36-14-5011

Related Advisory Opinions:

86-66
98-144
99-44
99-139
99-143
2000-17

Keywords:

Solicitation